Phelps v. Jenkins

Citations

• 5 Scam. 48

Syllabus

<p>Error to Ogle.</p> <p>1. Instruction — non-suit. A court will never instruct a jury to find as in case of a non-suit, where there is evidence tending to prove the issue, although it may be weak, and even insufficient, in the opinion of the court; it will be left to the jury, (a) But where one cause of action or defence depends upon the existence of several distinct facts each one of which is an essential link in the chain, an omission to aver, or a failure to prove, any one, would completely defeat the whole cause of action, or de-fence.</p> <p>2. Practice — onus shifted by replication. In an action upon a promissory note, the defendant pleaded that the consideration of the note was the title to a certain town lot, which had failed, and the plaintiff replied that the consideration was the sale and conveyance of certain improvements made, owned by. and in the peaceable possession of the plaintiff, which the defendant traversed: Held, that the plaintiff, by his replication, had assumed the burden of proving what was the real consideration of the note; and that if he had simply denied the plea, the onus probandi would have been thrown upon the defendant.</p>